What is the role of rights in private law? In a famous passage of Palsgraf, Judge Cardozo suggested that “what the plaintiff must show is ‘a wrong’ to herself, i.e., the violation of her own right.” Cardozo was focused on tort law, of course, but his doctrinal claim — that a plaintiff can sue only for the violation of their own rights — seems to extend to contracts, property, and restitution too (e.g., in the general rule that only parties to a contract can sue for its enforcement). What does Cardozo’s claim amount to, though? Is it getting the doctrine right? And is this rights-centered view of private law a normatively defensible one, or is there a better way to see things?
In this seminar, we’ll try to make some progress on these questions. Over the course of the semester, we’ll read both judicial opinions and scholarly articles in an effort to better understand the structure of private law, the logic, function, and justification of rights (both moral and legal), and the connection between rights and remedies. Along the way, we’ll look at doctrines that seem to speak in favor of a rights-centered view of private law. But we’ll spend more time on doctrines that seem like a puzzle for a rights-centered view (e.g., third-party beneficiaries in contract, third-party loved ones in tort, forms of strict-seeming liability in contract and tort, and more) and investigate their theoretical foundations. By and large, the assigned readings will be by moral and legal philosophers, but no background in philosophy is required.